To the Valley News:
For the last two months Mr Mauer and I have been having an exchange about the meaning of the Second Amendment.
In his most recent letter of May 18, replying to my letter of May 4, Mr. Mauer completely misinterprets my observation that the Second Amendment refers to a “well regulated militia,” and not, as Mr. Mauer phrased it, to a “well trained militia.” He states that I “insist that the word ‘regulated’ somehow has nothing to do with training of the militia . . .“ I wrote no such thing. The point I tried to make was that, to the courts and historians, the term “regulated” refers to government regulated militias not to private militias.
More important, however, are two other claims that Mr. Mauer makes: first, that the Second Amendment’s phrase “shall not be infringed” states an absolute prohibition on gun control; and second, that the Second Amendment provides for the right of revolution.
As to the Second Amendment creating an absolute prohibition on gun control, the U.S. Supreme Court nixed that idea in 2008:
“[L]ike most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose . . .”
Thus, the Second Amendment, like every component of the Bill of Rights, encounters limits. Lower federal and state courts are in the process of determining what those limits are. Since 2008 federal and state courts have upheld a wide variety of gun control laws.
Even more important than Mr. Mauer’s claim that the language of the Second Amendment creates an absolute prohibition on gun control measures, is his second claim that “the overarching purpose” of the Second Amendment is to protect the right of “the People” to initiate a revolution via private militias armed with the same military-grade weapons that the U.S. military and National Guardsmen can physically “keep and bear.” (Letter of April 6)
But what scholars of American history and the Second Amendment have concluded is that the framers had in mind “a universal militia, raised and disciplined by the state.” As Mr. Mauer correctly believes, they were animated by fear of the federal government. But the framers did not sanction private militias. In addition, to being disciplined and trained by the states, the American citizens who were part of such a state-created militia were considered to be homogenous and committed to the common good.
How does Mr. Mauer conceive of “the People”? If he conceives of “the People” as all Americans (or overwhelming majority of them) bound together by common values, a shared view of the common good, and shared perceptions of what it is about our governments (state and national) that is tyrannical enough to justify armed revolution, I maintain this is a mirage.
But this is probably not what Mr, Mauer has in mind. His letters seem to echo the views of militia movements on the Second Amendment right of revolution. Not surprisingly, they do not clearly answer the question of who are “the People” claiming a right to revolution. Motivated by particular views held by some people they assume their members are “the People.”
“Throughout America’s history groups of citizens have resisted the government in the name of an abstraction called the People. On inspection, however, that abstraction always turns out to be a subset of the citizenry, united by class, language, or political viewpoint.” (Professor David Miller)
George Washington stated the issue very clearly. Invoking the Militia Law of 1792 President Washington led 13,000 troops against those who took up arms against the fledgling new U.S. government in the Whiskey Rebellion of 1794.
“...if the laws are to be so trampled upon with impunity, and a minority...is to dictate to the majority, there is an end put at one stroke to republican government...for some other man or society may dislike another law and oppose it with equal propriety until all laws are prostrate, and everyone will carve for himself.”
Polls indicate that 85-90% of Americans and 81% of gun owners favor universal background checks. Suppose Congress someday passes a gun control measure that requires background checks on those who seek to buy guns from unlicensed dealers on-line and at gun shows. Just who are “the People” here in terms of the Second Amendment? Would it be a majority of members of Congress voting in accord with an overwhelming majority of Americans, or a minority of gun rights absolutists who would regard such a law as tyrannical?
I share with Mr. Mauer profound unhappiness with how dysfunctional our contemporary federal government is, and with many of our laws and judicial decisions. I even think some gun control measures may be unwise and unenforceable and that NY’s Safe Act may be unconstitutionally vague. There are legitimate interests on both sides of the gun control issue. But if a group of gun rights absolutists are unable to appreciate the public safety concerns of gun control measures and were to actually resort to violence against the government with military-grade weapons the predictable result would be disastrous, including the tragic deaths of rebellious militiamen.
Monique Weston, Keene